State v. Bynes, 1614

• Decision Date: 23 January 1991
• Docket Number: No. 1614,1614
• Citation: 304 S.C. 62,403 S.E.2d 126
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Jerome BYNES, Appellant. . Heard

Page 126

403 S.E.2d 126

304 S.C. 62

The STATE, Respondent, v. Jerome BYNES, Appellant.

No. 1614.

Court of Appeals of South Carolina.

Heard Jan. 23, 1991.

Decided Feb. 25, 1991.

Rehearing Denied March 19, 1991.

Certiorari Denied June 14, 1991.

Asst. Appellate Defender Joseph L. Savitz, III, of S.C. Office of Appellate Defense, Columbia, for appellant.

Atty. Gen., T. Travis Medlock, Asst. Attys. Gen., Harold M. Coombs, Jr., and Amie L. Clifford, Columbia, and Sol. Robert J. Harte, Aiken, for respondent.

BELL, Judge:

Jerome Bynes was indicted for and pleaded guilty to two counts of forgery. The circuit judge sentenced him to seven years imprisonment on the first count and a consecutive seven year sentence for the second. The judge suspended the sentence for the second count upon the service of forty months, followed by five years probation. With Bynes' consent, the judge ordered him, as a condition of probation, to pay restitution to the victims of his forgeries, including several forgeries for which he had not been indicted. Bynes now appeals that order, asserting the court lacked subject matter jurisdiction to require him to pay restitution on the forgeries for which he had not been indicted. We affirm.

Bynes correctly argues that unless a defendant waives grand jury indictment and pleads guilty, the court lacks subject matter jurisdiction to convict and sentence him for an offense when there is no indictment charging him with that offense. State v. Beachum, 288 S.C. 325, 342 S.E.2d 597 (1986). But see State v. Hann, 196 S.C. 211, 12 S.E.2d 720 (1940) (presentment of a grand jury is a condition precedent to the trial of a crime except in certain minor offenses). The argument, however, has no application under the facts of this case, since Bynes was neither convicted nor sentenced for offenses for which he had not been indicted. Viewed properly, this case involves the judge's sentencing authority, not his jurisdiction.

South Carolina Code Section 24-21-430 provides that a trial court "shall determine and may impose ... conditions of probation and may include among them ... any ... condition not herein prohibited." S.C.Code Ann. § 24-21-430 (1976 & Supp.1990). The statute does not prohibit imposition of the type of condition ordered and agreed to in this case. Furthermore, Section 17-25-125, which authorizes a judge to impose restitution as a condition of probation for crimes for which a defendant is sentenced, specifically states that "[n]othing contained herein shall preclude a judge from prescribing other conditions of probation." S.C.Code Ann. § 17-25-125 (1976).

A judge has discretion to impose any sentence which is within the limits prescribed by statute. Stockton v. Leeke 269 S.C. 459, 237 S.E.2d 896 (1977). Absent a positive rule limiting this discretion, a judge acts properly in considering restitution for unindicted offenses as a condition of probation as long as the defendant knowingly consents to the judge's consideration of those crimes and there is some evidentiary basis for the amount of restitution ordered. Cf. State v. Wilson, 274 S.C. 352, 264 S.E.2d 414 (1980) (affirming judge's order of reparation to victim even though not expressly provided for by statute, but remanding for determination of amount as there was no evidentiary basis in the record for the amount ordered). This rule is recognized in other jurisdictions which have considered the issue. E.g., State v. Gerald, 57 Wis.2d 611, 205 N.W.2d 374, app. dismissed, 414 U.S. 804, 94 S.Ct. 148, 38 L.Ed.2d 40 (1973) (trial court did not deny defendant's due process rights when requiring as a condition of...